DISSENTING OPINION OF MM S. TRECHSEL, G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK, J.-C. SOYER, H. DANELIUS, M.P. PELLONPÄÄ, I. BÉKÉS,

K. HERNDL, E. BIELŪNAS AND E.A. ALKEMA

We have voted against the finding of a violation of Article 8 taken in conjunction with Article 14.

We could agree with the majority that “the general submissions of the respondent Government to justify the distinction between married and unmarried fathers, underlying S. 1711 para. 2 of the Civil Code, fail sufficiently to justify a refusal of access” (para. 64). However, it does not seem that the case was actually decided on the basis of any general distinction made in law between married and unmarried fathers. The District Court rather came, after also having heard the child, to the conclusion that the enforcement of visiting rights would not only fail to serve the interests of the latter’s well-being and but would also affect his undisturbed development in the remainder of his family. The Regional Court equally held that contacts between the applicant and the child would negatively affect the latter. In our view the applicant has not shown that, in a parallel situation, a married father would have been treated more favourably. Therefore, there has been no discrimination.

In view of the above conclusion we also need to examine Article 8 taken alone. We do not, however, find any violation on this count either. The decisions of the courts show that the reasons for the interference with the applicant’s family life were sufficient and relevant. Also the decision-making process was such as to make it possible for the applicant to be sufficiently involved (cf. Eur. Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 28, paras. 62-63).  In this regard we note that the applicant could be in contact with a mediator of the Erkrath Youth Office, was heard by the District Court and could file an appeal to the Regional Court.

In our view there has been no violation of Article 6 either. The District Court not only heard the applicant and the child’s mother but also questioned the child, as it had done in the previous set of access proceedings. It is true that no expert evidence had been obtained on the question of contacts between the applicant and the child. However, it must be borne in mind that the District Court had the benefit of direct contact with all persons concerned including the child. It could, therefore, reasonably judge whether the child’s young age and the recommendation of the competent Youth Office gave cause for such a procedural step which, no doubt, would have resulted in additional stress for the child.

Moreover, the Commission considers that the District Court’s reasons, as stated in its decision of 17 December 1993, sufficiently explain that expert evidence had not been necessary to complete the establishment of all relevant facts. The District Court’s supplementary considerations regarding the tasks of court-appointed experts were not decisive for its decision. In view of this and taking into account the margin of appreciation of the domestic courts, the decision not to have an expert opinion prepared did not affect the fairness of the District Court proceedings. The same applies to the proceedings before the Regional Court in so far it concerns the question of an expert opinion.

As to the lack of an oral hearing before the last-mentioned court, it is recalled that the absence of public hearings at a second or third instance court may be justified, provided that there has been a public hearing at first instance (cf. Bulut v. Austria judgment, loc.cit., p. 358, para. 41).

In the present case the Regional Court noted the strained relationship between the applicant and the child’s mother, a matter which was not in dispute between the parties to the access proceedings. In these circumstances, the appeal, even taking into account what was at stake for the applicant, namely his right of contact with the child, could be decided on the basis of the case-file despite the fact that the applicant’s appeal submissions went to the merits of the case and raised questions as to the establishment of all relevant facts.  In this respect, we also note that, when the Regional Court took its decision, the last questioning of the child by the District Court had taken place less than two months earlier. We further note that the Regional Court explained the reasons for its decision not to hold an oral hearing.

In our view, the Regional Court could, as a matter of fair hearing, properly decide to examine the appeal without the applicant having a right to present his arguments at a public hearing and also without a direct assessment of the evidence given in person by the child and his mother.

Having also regard to the entirety of the proceedings before the Mettmann District Court and the Wuppertal Regional Court, we find that the procedure followed satisfied the requirements of a fair and public hearing.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.